Parliament prorogation legal challenge rejected by Scottish court

The Queen, acting on the advice of UK prime minister Boris Johnson, last week backed the prorogation of parliament for a period of five weeks ending on 14 October. That move by the government has been challenged before the courts in three separate cases brought in Scotland, England and Northern Ireland.

The legal challenges centre on the question of whether the government's move to prorogue parliament is constitutional. Those challenging the government in the cases believe the government's motive for prorogation is to avoid parliamentary scrutiny of its plans to deliver Brexit on 31 October. The government has stated, though, that prorogation of parliament is necessary for it to deliver a fresh legislative agenda for the country.

In an eagerly anticipated opinion handed down in the Outer House of the Court of Session in Edinburgh on Wednesday morning, Lord Doherty said, though, that the prorogation of parliament in this case was a political matter and not one the court had the power to intervene in.

The cross-party group of MPs that led the legal challenge – in Scots law parlance 'the petitioners' – have said they will appeal the ruling to the Court of Session's Inner House.

Jim Cormack QC of Pinsent Masons, the law firm behind Out-Law, said: "Lord Doherty has refused the petition primarily on the basis that the issues raised by the prorogation of parliament are quintessentially non-justiciable because they involve matters of high policy and political judgment."

"Anticipating an appeal of the decision, Lord Doherty has rejected in any event, the petitioners’ case that the advice to Her Majesty was unlawful. In particular, Lord Doherty indicated that even if prorogation was within the scope of the courts, political judgments would be relevant considerations as a matter of law. While some may think this is the end of the story, an urgent appeal is expected to be lodged with a hearing likely to take place this week. Indeed, arrangements could be made for the court to sit this afternoon."